Sims v. State

591 N.E.2d 1044, 1992 Ind. App. LEXIS 861, 1992 WL 108211

• Court: Indiana Court of Appeals
• Decided: May 26, 1992
• Docket: 32A01-9108-CR-239
• Status: Published

Opinions

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Thomas Sims appeals his convictions of three counts of Child Molesting, ¹ Class C felonies. We reverse and remand.

ISSUE

We address only the dispositive issue on appeal:

Did Sims receive ineffective assistance of counsel by his attorney's failure to object to vouching testimony?

FACTS

On March 10, 1990, the victim, Z.G., and his family moved into the first floor of a two-story home, because their home had burned down. Sims lived on the second floor with his family. In June, Sims often took Z.G. on walks. Z.G. later told his mother, Julia Goss, that Sims had molested him during the walks. Julia did not immediately report the incidents. A neighbor heard about the alleged molesting and notified the Brownsburg police department. During an investigation, Z.G. related to Detective Susie Austin that Sims had frequently fondled him and shown him pornographic magazines. Sims was charged and convicted of three counts of child molesting. Other relevant facts will be presented in our discussion.

DISCUSSION AND DECISION

Sims raises several arguments to establish that he received ineffective assistance of counsel; however, we address only one which requires a new trial. We evaluate ineffective assistance claims using a two-part test: first, the appellant must show that his counsel's performance was deficient, and second, that he suffered prejudice as a result. Clark v. State (1990), Ind., 561 N.E.2d 759, 762. The defendant has the burden of showing strong and convincing evidence to overcome the presumption of counsel's competence. Jones v. State (1989), Ind., 544 N.E.2d 492, 494.

Sims contends that his attorney was deficient by failing to object to vouching testimony which bolstered the victim's testimony and thereby prejudiced Sims. Frank Goss, the victim's father, testified as follows: "Q. When you first talked to [Z.G.] about this did you believe him? A. Yes. I still believe him" Record at 785-86. Sims complains that his attorney's failure to object constitutes ineffective assistance of counsel and amounts to reversible error.

When an appellant's claim is predicated on counsel's failure to object, the appellant must demonstrate that a proper objection would have been sustained by the trial court. See Hill v. State (1990), Ind., 561 N.E.2d 784, 785. Sims relies upon Stewart v. State (1990), Ind., 555 N.E.2d 121, and Ulrich v. State (1990), Ind.App., 550 N.E.2d 114, trams. denied, to support his contention that an objection to Frank's vouching testimony would have been sustained. In Stewart, our supreme court reversed the defendant's convictions where a psychologist was permitted to testify, over the defendant's objection, that another witness was trustworthy. - Stewart, 555 N.E.2d at 125. Similarly, the Ulrich court found reversible error by the court's admission of a psychiatrist's testimony that the victim was reliable and credible. Ulrich, 550 N.E.2d at 115. The Ulrich court determined that the vouching testimony invaded the province of the jury, and the trial court erred in failing to admonish the jury or strike the answer after the defendant's timely objection. Id. In Stewart and Ul-rich, the courts found the admission of the impermissible vouching testimony despite the defendants' objections required reversal. These cases support Sims's assertion that if his trial counsel had objected to Frank's vouching testimony, the objection would have been sustained.² Sims has met his burden of showing that his trial counsel's performance was deficient and prejudicial. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

SHARPNACK, J., concurs. BAKER, J., dissents with separate opinion.

1 . Inp. Cope § 35-42-4-3.

2 . We note two recent decisions on vouching testimony. In Kelley v. State (1991), Ind.App., 566 N.E.2d 591, 593, Judge Barteau rejected Kelley's allegation of error claiming improper vouching testimony required reversal. Kelley's counsel failed to object to a therapist's testimony that the victim was telling the truth. The appellate court determined that no fundamental error had occurred. Id. Likewise, in Okuly v. State (1991), Ind.App., 574 N.E.2d 315, 316-17, trans. denied, Judge Staton found that Okuly had not established fundamental error by the improper vouching testimony about the victim's truthfulness. Although the testimony was improper, no fundamental error resulted because Okuly was able to assail the impression that the victim was truthful. Id. at 317. We distinguish Kelley and Okuly because those appellants alleged only fundamental error and did not attack the effectiveness of counsel as Sims does here.